ARTICLE II: On the Order of Restitution among Unjust Cooperators

This question is closely connected with the preceding one. For to one knowing in what measure he ought to restore, it immediately comes to be inquired whether another, who cooperated with him in inflicting damage, is held to restore before him, or after him, or equally with him.

995. PRINCIPLES. I. The order of restitution follows the degrees of concurrence, if the cooperators have concurred in the damage in a different degree; for example, if one mandated, another counseled, another executed. Thus commonly (III, 580; cf. Lugo, disp. 19, s. 4).

Now the degrees are the following:

1. The first place is held by the unjust detainer of another's thing; for the thing cries out for the owner. If he consumed the thing in good faith, he is held to nothing, except insofar as he has become richer; if he consumed it in bad or doubtful faith, he is held to restore its whole price, because "he is regarded as possessor who by fraud has ceased to possess" (Rule 36, in the Sext). Here the things determined in nn. 935-948 have force.

2. When the unjust detainer fails, likewise if it is a question of mere damage, the one mandating is held, because he is the principal author of the damage. - The same must be said of one counseling who persuaded another to inflict damage for his favor, or who induced him into invincible error; for he is equated with one mandating.

3. The executor is held, under which name also comes a participant in the crime, for example an adulterer consenting because of fear; the reason is that the executor, as one physically influencing the damage and acting also in his own name, is the principal cause of the damage after the one mandating; therefore he must precede the one counseling properly so called and the others.

4. Other positive causes are held, such as those giving counsel for the favor of another, etc. But among these there is no order, because there is no subordination; for the one counseling does not act through the one consenting, nor the one consenting through the flatterer or receiver. Therefore the whole primary damage cannot be imputed to any one (cf. 996).

5. Negative causes are held, namely in the defect of all those positively cooperating. But among these also no order is to be assigned, because none of these causes is the instrument of another. Yet from contract he is held before the others to whom care of the thing was specially committed. Cf. Lehmkuhl, I, n. 1210.

996. II. Cooperators who have concurred in the same degree must restore indiscriminately, for example two mandating, two consenting. Yet attention must be paid to the measure of influence or efficacy which each contributed to perpetrating the injustice (III, 581).

From these things you will deduce: 1. If the principal cause, or cause of a superior degree, has restored or obtained condonation, the secondary causes which come in an inferior degree are held to nothing.

2. If one of the secondary or subaltern causes has restored or obtained condonation, the superior cause is not for that reason freed; for this cause must make unharmed either the inferior cause which has already restored, or the owner who condoned to the inferior cause.

3. If one of the causes obligated pro rata and in solidum has restored the whole, the others are held to refund their parts to him. If any of them cannot or will not restore, his part must be returned by the rest. - If he has obtained condonation, the other causes of the same degree are not for that reason freed, unless the condonation was altogether full, or can deservedly be presumed such.

It must be noted "that if a creditor promises to one of the debtors equally principal that he will not molest him, he is judged to remit that one's part; for if he were to exact the whole from the others, that one would be compelled by them to restitution, and thus the promise would be vain" (III, 581; cf. Laymann, l. III, tr. 2, c. 6, nn. 3-5).